by Warren Stewart, Director for Legislative Issues and Policy, Vote Trust USA
In the 109th Congress, several bills have been introduced that would amend the Help America Vote Act of 2002 (HAVA) with provisions for Voter Verified Paper Records. Two bills (HR 704 and HR 278) are narrowly-focused on the paper record requirement, while two others (HR 530 and HR 939) are comprehensive election reform bills in which the paper record requirement is just one element. Finally, HR 550 is concerned primarily with verification and accuracy but goes beyond merely requiring a paper record to include several other significant provisions.
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Vote Verification Legislation in the 109th Congress
Introduced by Rep. Gibbons of Nevada
This bill is a companion to Senator Ensignâs S. 330. It is a clearly written and focused bill that amends HAVA to require that all voting systems produce an ãindividual permanent paper record for each ballot castä that the voter can verify and correct before the vote is cast electronically. It provides for the preservation of the paper records, establishes that in the case of inconsistencies between the paper record and any other data the paper record is considered superior, and mandates that the paper record shall be used in audits or recounts.
Vote Trust USA strongly supports the establishment of a voter verifiable paper record requirement as a necessary Îsafety netâ in the case of machine malfunction. HR 704 is a well-written bill and we endorse it, but it is only a first step. Once a requirement for a voter verified paper record has been established, it is imperative that a mechanism be established that uses that voter verified paper record to check the accuracy of the electronic voting systems. The best available solution is an automatic, random audit of some statistically significant sample of the paper records. Such an audit procedure should trigger further hand counts if the audit reveals discrepancies that call the accuracy of the electronic records into question.
HR 278: The Know Your Vote Counts Act of 2005
Introduced by Rep. King of Iowa
This bill also requires a voter verified paper record but allows states to determine whether or not the paper record will have any significance. It states ãthe vote shall be final and the record shall serve as a [as opposed to "the"] permanent paper record of the vote." It also amends HAVA's existing requirement that the permanent paper record be available as an official record for any recount conducted with respect to any election in which the system is used, adding "and for such other official purposes as may be provided under State law." This addition will create an "unequal protection" scenario, in which some states will mandate that the paper records have special legal significance and others will refer to them as extraneous. Since the paper records are the only ones that the voters (rather than the machines) verify, they must have special legal significance, and this must be uniform across the country.
Vote Trust USA does not support this bill.
HR 550: The Voter Confidence and Increased Accessibility Act
Introduced by Rep. Holt of New Jersey
This bill effectively addresses the widespread concern over the accuracy and security of voting systems. Its carefully written language is the result of years of dialogue with computer scientists, election reform advocates, and numerous organizations of disabled Americans. HR 550 would strengthen the HAVA current audit trail requirement by requiring that the voters have the opportunity to verify the accuracy of the recorded vote and that all voting systems produce a voter-verified paper record. It would require random, unannounced, hand-count audits of the voter-verified paper records, conducted by the Election Assistance Commission in 2% of all jurisdictions, including at least one precinct per county. It would preserve HAVAâs existing access requirements for voters with disabilities; clarify and enhance the security requirements demanded of systems to be used by voters with disabilities, and add the requirement that an accessible vote-verification mechanism be provided.
HR 550 would also ban the use of undisclosed software and all wireless and concealed communications devices in voting systems, and it would prohibit the connection of any voting machine component to the Internet. Finally, it would require manufacturers and election officials to document the chain of custody with respect to the handling of software; prohibit the use of software or software modifications that have not been certified or re-certified; and prohibit political and financial conflicts of interest among manufactures, test laboratories, and political parties.
Significantly, HR 550, Uunlike HR 278 and HR 704, allows for an alternative verification system for use by individuals with disabilities without specifically mandating technology that does not yet exist. Further, it establishes a study to promote the development of technology to facilitate accessible verification.
Vote Trust USA endorses HR 550 and strongly urges all Representatives to sign on as co-sponsors.
HR 939: The Count Every Vote Act of 2005
Introduced by Rep. Tubbs-Jones of Ohio
This is a sweeping election reform bill that addresses many of the concerns that arose after the November 2004 elections. It contains provisions for voter verified paper records and mandatory audits among its many requirements. Well intentioned though it is, there are unfortunately some flaws in the verification language resulting from the way certain provisions interact with others as well as with existing state and federal legislation.
For example, CEVA requires that disabled voters be provided a means of verification that ãshall not require the voter to handle the paperä though it goes on to add that this requirement ãshall not preclude the use of Braille or tactile ballots for those voters who need them.ä This would seem to preclude the use of ballot-marking devices like the AutoMark that enable visually impaired, illiterate, and reading disabled people to independently and privately mark and verify optical scan ballots.
CEVA allows that these requirements ãshall not apply to any voting system certified by the Independent Testing Authorities before the date of the enactment of this Act.ä Assuming that the AutoMark is certified as soon as expected, it would therefore be exempted from the Îhandlingâ provision except that the bill earlier specifies that "any direct recording electronic voting system or other voting system · shall produce · an individual paper record which · shall be available for visual, audio, and pictorial inspection and verification by the voter."
There are currently no systems in this country that provide for pictorial verification of a voterâs vote, much less systems that stand any chance of development, testing, federal and state certification, manufacture, and distribution in time for the deadlines imposed by CEVA (November, 2006). Quite apart from the inadvisability of mandating technology that does not exist, this provision, well-intentioned though it may be, would prohibit the use of currently existing systems that provide independent accessibility for almost all disabled voters and likely result in litigation regarding the certification status of systems like the AutoMark.
Additionally, though this provision does call for the option of pictorial verification, there is no corresponding language in CEVA or HAVA requiring the initial vote to be cast using some sort of pictorial method. Since the pictorial option is apparently intended for illiterate voters, voters with limited language skills, or voters with disabilities that inhibit their ability to use a written language, it seems inconsistent to require this accommodation in the verification process while not requiring it in the initial voting process. Needless to say, requiring all voting systems to accommodate pictorial voting in time for the deadlines imposed by CEVA would be financially and logistically impossible.
A further consequence of the pictorial requirements would be to force states that have single voting system provisions in their state election laws to retire their paper-based voting systems and buy a whole fleet of Direct Record Electronic (DRE) systems. We strongly oppose any legislation that would increase the deployment of electronic voting machines.
The mandatory audit language in CEVA does little more than require a 2% recount and the publication of the results of the recount. There is no mandated action should the results of the recounts reveal discrepancies between any electronic data and the data derived from voter verified records. There are also no provisions for funding, administering, or implementing the mandatory recount.
CEVA includes valuable provisions for verification and election security. Vote Trust USA endorses the prohibition of thermal paper, unique to this bill, and we also endorse the prohibition, shared with other bills, of undisclosed voting software and wireless communication. However, this bill falls short of the standards that we feel are necessary to restore votersâ confidence in electronic voting systems.
H.R. 533: Voting Opportunity and Technology Enhancement Rights Act of 2005
Introduced by Representative Conyers of Michigan
Though this bill contains many excellent provisions addressing concerns over voting rights, the verification language in this bill is even more problematic than HR 939 and completely unacceptable to those concerned with accuracy and verification. Like HR 939 this bill mandates technology that does not exist and grandfathers in all machines purchased before 2007. It would be likely to result in the purchase of thousands of paperless electronic voting machines. Further, this bill neither requires the preservation of voter verified records nor does it establish the verified record as the true and correct record of the voterâs vote. Finally, this bill does not mandate any sort of automatic audit to use the verified records as means of verifying the accuracy of electronic data.
While we applaud the voting rights provisions in Section 2 of HR 533, Vote Trust USA does not support the bill as a whole.